T-673-92
Danielle Vezina (Applicant)
v.
The Canadian Human Rights Commission and
John Hucker (Respondents)
INDEXED AS. VEZINA V. CANADA (HUMAN RIGHTS
CoMMIssIon) (TD.)
Trial Division, Pinard J.—Ottawa, September 30 and
October 14, 1992.
Human rights — Application to quash Canadian Human
Rights Commission's (C.H.R.C.) decision dismissing appli
cant's complaint — Applicant, employee of C.H.R.C., not per
mitted to take smoking breaks, except during scheduled breaks
— Claiming only employee to be placed under such restric
tions — Complaint alleging harassment and discrimination
based on disability (depression and tobacco dependence) — As
administration and implementation of Canadian Human Rights
Act vested exclusively in C.H.R.C., latter having jurisdiction
over own employees, even where complaint alleges discrimina
tion through act of one of its employees, without requirement of
automatic referral of complaint to Human Rights Tribunal —
Nemo judex principle excluded by structure of Act—Applicant
submitting C.H.R.C. erred in law in failing to address issue of
adverse effect discrimination caused by implementation of
smoking policies that discriminate against persons dependent
upon tobacco — As complaint not alleging adverse effect dis
crimination, cannot now be raised.
Judicial review — C.H.R.C. employee prohibited from taking
smoking breaks in addition to scheduled breaks — Alleging
harassment as only employee subject to such restrictions, and
discrimination based on disability — Deputy Chief Commis
sioner dismissing grievance and later presiding over proceed
ing whereat human rights complaint dismissed although par
ticipated neither in discussions nor in vote — No reasonable
apprehension of bias — Test for reasonable apprehension of
bias set out in Committee for Justice and Liberty et al. v.
National Energy Board et al., [1978] 1 S.C.R. 369 not met —
Deputy Chief Commissioner's mere presence for quorum pur
poses only not appearing to have influenced decision, particu
larly as made in accordance with findings of independent
investigator.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2,
7, 14, 26, 27, 40 (as am. by R.S.C., 1985 (1st Supp.), c.
31, s. 62), 41, 43 (as am. idem, s. 63), 44 (as am. idem,
s. 64), 48, 49(1) (as am. idem, s. 66), 66.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by
S.C. 1990, c. 8, s. 4).
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
s. 2, Schedule I.
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68
D.L.R. (3d) 716; 9 N.R. 115.
REFERRED TO:
Brousseau v. Alberta Securities Commission, [1989] 1
S.C.R. 301; (1989), 57 D.L.R. (4th) 458; [1989] 3
W.W.R. 456; 93 N.R. 1; Canada (Attorney General) v.
Canada (Canadian Human Rights Commission) (1991),
36 C.C.E.L. 83; 91 CLLC 17,016; 43 F.T.R. 47
(F.C.T.D.).
APPLICATION to set aside Canadian Human
Rights Commission's dismissal of a complaint made
against it by one of its employees and for an order
directing appointment of a Human Rights Tribunal.
Application dismissed.
APPEARANCE:
Danielle Vezina on her own behalf.
COUNSEL:
René Duval for respondent Canadian Human
Rights Commission.
Peter B. Annis for respondent John Hucker.
APPLICANT ON HER OWN BEHALF:
Danielle Vezina, Hull, Québec.
SOLICITORS:
Canadian Human Rights Commission, Ottawa,
for respondent Canadian Human Rights Com
mission.
Scott & Aylen, Ottawa, for respondent John
Hucker.
The following are the reasons for order rendered in
English by
PINARD J.: This is an application for an order
(i) quashing the decision of the Canadian Human
Rights Commission ("C.H.R.C.") dated February
18, 1992 to dismiss the applicant's complaint of
discrimination against the respondents; and
(ii) directing that the applicant's complaint of dis
crimination be remitted back to the C.H.R.C. for
the appointment of a Human Rights Tribunal pur
suant to subsection 49(1) of the Canadian Human
Rights Act, R.S.C., 1985, c. H-6 [as am. by R.S.C.,
1985 (1st Supp.), c. 31, s. 66].
The applicant has been employed as a secretary by
the C.H.R.C., one of the respondents, since July
1981. Between April 1982 and September 1988, she
occupied the position of secretary to the Secretary-
General of the C.H.R.C. While she was on maternity
leave, Mr. John Hucker, the other respondent, was
appointed Secretary-General of the C.H.R.C. On
August 2, 1988, when the applicant returned from her
leave, she started working for Mr. Hucker.
Since October 1987, as a result of anti-smoking
policies, smoking is no longer permitted in the
C.H.R.C.'s workplace. According to the applicant,
around September 8, 1988, Mr. Hucker informed her
that she would not be allowed to leave her desk to
smoke, except during her scheduled breaks. She
claims that she was the only employee to be placed
under such restrictions.
Around September 19, 1988, the applicant pro
vided Mr. Hucker with a copy of a first letter from
her psychiatrist, Dr. Pierre Monpremier, requesting
that the applicant not be prevented from taking smok
ing breaks in addition to scheduled breaks. In this let
ter, Dr. Monpremier stated that he had been treating
the applicant since October 1982 and that preventing
her from smoking could be harmful ("dommage-
able") to her because it would increase her level of
stress. The doctor stated that the applicant's stress
level would increase if she were not allowed to
smoke because smoking relaxes her and because she
would be subjected to more severe restrictions than
those of her co-workers.
According to the applicant, Mr. Hucker disre
garded the recommendations of Dr. Monpremier and,
since around September 23, 1988, she was seconded
in another section of the C.H.R.C., a less interesting
and not permanent position. She claims that the
secondment was initiated by Mr. Hucker. As well,
the applicant alleges that Mr. Hucker had repeatedly
asked her current supervisor for information about
her efforts to seek employment outside the C.H.R.C.
Dr. Monpremier wrote a second letter, addressed
"to whom it may concern" and dated November 22,
1989, stating that the applicant was suffering from
bipolar cyclical endogenic depression, an illness
caused by inadequate production of hormones in the
brain and characterized, in the applicant's case, by
depressive states and anxiety crises. The doctor fur
ther stated that the selective smoking restrictions
placed on the applicant were directly related to a
severe relapse of her illness because the restrictions
caused a number of stressful events to occur.
On November 28, 1989, the applicant filed a com
plaint with the C.H.R.C. against the C.H.R.C. and
Mr. Hucker, alleging harassment and discrimination
on the basis of "disability (endogenous depression
and dependence on tobacco)". Her complaint was
based on sections 7 and 14 of the Canadian Human
Rights Act.
On the initial filing of the applicant's complaint, it
was recommended, by way of a "Report Prior to
Investigation" dated March 28, 1990, that, pursuant
to section 41 of the Canadian Human Rights Act, the
complaint be first dealt with by way of a grievance
under the Public Service Staff Relations Act, R.S.C.,
1985, c. P-35. The applicant filed the complaint and
the latter was dismissed by the C.H.R.C.'s Deputy
Chief Commissioner, Michelle Falardeau-Ramsay,
who could not conclude that the applicant had been
harassed or discriminated against.
The C.H.R.C. then appointed Yves De Montigny,
an outside investigator and a professor of law, to con
duct an investigation of the applicant's complaint.
Mr. De Montigny submitted a lengthy report to the
C.H.R.C. recommending that the complaint be dis
missed.
On February 18, 1992, the C.H.R.C. met to con
sider the complaint of the applicant and dismissed the
complaint against the two respondents. Even though,
for quorum purposes, the meeting was presided over
by the Deputy Chief Commissioner, Ms. Falardeau-
Ramsay, who was the sole full-time member of the
Commission available at that time, Ms. Falardeau-
Ramsay did not partake in the discussions and
abstained from voting.
Invoking section 18 of the Federal Court Act
[R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)]
and paragraph 44(3)(a) [as am. by R.S.C., 1985 (1st
Supp.), c. 31, s. 64] together with subsection 49(1) of
the Canadian Human Rights Act, the applicant sub
mitted that a reasonable apprehension of bias, on the
part of the C.H.R.C. which rendered the decision to
dismiss the applicant's complaint, was created due to
the following circumstances:
(i) the applicant's complaint of discrimination was
against the C.H.R.C. itself and one of its senior
administrative officers, Mr. John Hucker; and
(ii) the Deputy Chief Commissioner of the Com
mission, Ms. Falardeau-Ramsay, presided over the
proceedings at which the applicant's complaint
was dismissed after having already rendered a neg
ative decision in respect of the applicant's com
plaint as part of the grievance procedure under the
Public Service Staff Relations Act.
The applicant also submitted that the respondent
C.H.R.C. erred in law in failing to address the issue
of adverse effect discrimination when rendering its
decision to dismiss the applicant's complaint.
In my view, the C.H.R.C. could consider and deal
with the case of the applicant pursuant to section 44
of the Canadian Human Rights Act, even though the
latter was one of its own employees. Moreover, the
Commission could do so without being required to
automatically refer the complaint to a Human Rights
Tribunal. Indeed, by virtue of section 2 and subsec
tion 40(1) of the Canadian Human Rights Act,
employees of the C.H.R.C. have an absolute right to
lay human rights complaints. Also, by the combined
effect of subsection 66(1) of the Canadian Human
Rights Act, section 2 and Part I of Schedule I of the
Public Service Staff Relations Act, human rights com
plaints under the Canadian Human Rights Act can be
made against the Commission as an employer. As the
administration and implementation of the Canadian
Human Rights Act have been vested exclusively in
the C.H.R.C. (see sections 26, 27, 40 [as am. by
R.S.C., 1985 (1st Supp.), c. 31, s. 62], 43 [as am.
idem, s. 63], 44, 48 and 49 of the Canadian Human
Rights Act), there is no doubt that the C.H.R.C. has
jurisdiction over its own employees even in cases
where the complaint alleges discrimination through
the act of one of its employees. I must emphasize that
in such cases the Canadian Human Rights Act does
not require the automatic referral of the complaint to
a Human Rights Tribunal. Consequently, the nemo
judex principle is excluded by the structure of an Act
of Parliament, namely the Canadian Human Rights
Act, the constitutionality of which, in the case at bar,
is not in issue (see Brousseau v. Alberta Securities
Commission, [1989] 1 S.C.R. 301, at page 309).
With respect to the fact that the Deputy Chief
Commissioner, who had previously dismissed the
applicant's complaint under the Public Service Staff
Relations Act's internal grievance procedure, pre
sided over the meeting determining whether the
applicant had been subject to harassment and dis
crimination, I do not consider that this fact, in the
particular circumstances of this particular case, gave
rise to a reasonable apprehension of bias. The current
test for establishing a reasonable apprehension of
bias was adopted in Committee for Justice and Lib
erty et al. v. National Energy Board et al., [1978] 1
S.C.R. 369, at pages 394-395, by the Supreme Court
of Canada and read as follows:
... the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to
the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is "what would an
informed person, viewing the matter realistically and practi-
cally—and having thought the matter through—conclude.
Would he think that it is more likely than not that Mr. Crowe,
whether consciously or unconsciously, would not decide
fairly."
I can see no real difference between the expressions found in
the decided cases, be they `reasonable apprehension of bias',
`reasonable suspicion of bias', or 'real likelihood of bias'. The
grounds for this apprehension must, however, be substantial
and I entirely agree with the Federal Court of Appeal which
refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience".
Here, the Deputy Chief Commissioner of the
C.H.R.C., who acted in total compliance with the
Canadian Human Rights Act and the Regulations
adopted thereunder, has abstained from taking part in
the decision-making. She did not participate in the
discussions and she did not vote. In my opinion, her
brief answers to the few questions asked by the com
missioners did not show any involvement of any sig
nificance. Her mere presence, which was required for
quorum purposes only, cannot, under the circum
stances, appear to have influenced the decision of the
C.H.R.C. made pursuant to paragraph 44(3)(b) of the
Canadian Human Rights Act. This is all the more so
because this decision was made upon consideration
of and in total accordance with the findings and the
conclusions of an investigation made by an outside
investigator. In my view, the above test for establish
ing a reasonable apprehension of bias has not been
met and I cannot see any rules of procedural fairness,
in this case, which could have been violated.
Finally, with respect to the issue of adverse effect
discrimination, it appears, after reading the two com
plaint forms, that the applicant did not frame her
complaint in terms of the adverse effect discrimina
tion caused by the implementation of non-smoking
policies that discriminate against persons having a
tobacco dependency. The applicant merely alleged
harassment and differential treatment because Mr.
Hucker supposedly enforced the non-smoking policy
in a more restrictive manner than other supervisors,
without regard for her disability. The applicant can
not attempt now to introduce new elements into her
original complaint (see Canada (Attorney General) v.
Canada (Canadian Human Rights Commission)
(1991), 36 C.C.E.L. 83 (F.C.T.D.).
For all these reasons, the motion must be dis
missed.
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